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Restricting the practice of Non-Emergency Patient Transport providers in Victoria

My colleague, Ruth Townsend, and I have been invited to make a regular contribution to Response, the official journal of Paramedics Australasia. Our last column was ‘Restricting Paramedic Practice – An Issue of Professional Practice’ ((2014) 41(2) Response 33-35).

In that column we argued that a reported practice of Ambulance Victoria, in engaging advanced life support paramedics to work from stations that were not usually staffed by such officers, but paying them as if they were not advanced life support officers and restricting their scope of practice was unethical and could lead to issues of legal liability. I should note that we did not confirm the details of that practice, rather we were reporting on the practice that was, in turn, reported in the press (see Kitchen, Kylie, ‘Just Ridiculous’ Midland Express, 25 March 2013 (Online) <http://www.elliottmidnews.com.au/story/1386816/just-ridiculous/?cs=1479&gt; accessed 10 April 2014). If you like we took Kitchen’s story as a hypothetical to ask ‘assuming this is true, what are the consequences?’ Ambulance Victoria may well have a different view of what their policy says and what their actions are.

With that disclaimer in mind, I can now address a question that I received in response to that paper. I have been asked:

Taking some of the points in your article a step further in the restriction of trade, if a licenced NEPT holder who has in place appropriately qualified staff and a drug permit which basically only allows them to carry Penthrane is called upon to treat say a cardiac arrest or someone in severe pain and the emergency ambulance is delayed in attending (without drug therapy), could the government also potentially be liable for not allowing/issuing an appropriate drug permit to the NEPT provider for their staff to utilise their skills (drugs) in a safe and appropriate manner? Just to add this also some staff may also be working for an emergency ambulance service or defence or are authorised by another state/territory to use the drugs required to manage these patients.

The answer to that question is ‘no; the government [is not] … potentially be liable for not allowing/issuing an appropriate drug permit to the NEPT provider for their staff to utilise their skills (drugs) in a safe and appropriate manner.’

In our paper in Response we made some critical assumptions, most importantly that the equipment and drugs necessary to provide advanced care were available but not used due to the instructions from the employer. We said:

It should be noted here that if those resources are not available then the staff cannot be held liable or subject to professional discipline, for not using equipment or resources that they do not have (Wrongs Act 1958 (Vic) s 83). The ambulance service may be liable for not providing those resources, however if the risk, expense, difficulty or inconvenience of providing those resources is considered by Ambulance service to be too high, then it may be reasonable not to equip every ambulance to the MICA standard and the Ambulance Service would also not be liable. Further discussion of these resourcing issues is beyond the scope of this paper so for this discussion we assume that MICA resources are available.

I can expand on that a bit further. The law requires a potential defendant to act ‘reasonably’. What is the reasonable response to a risk requires consideration of the cost, expense etc of taking alleviating action (Wyong Shire Council v Shirt (1980) 146 CLR 40). That’s true of a defendant like the ambulance service if it’s making decisions about the allocation of resources (eg do we equip every ambulance as a Mobile Intensive Care Ambulance (MICA)).

The situation is even clearer for governments. There is a distinction between the administrative, legislative and judicial arms of government and each has to leave to the other their own ‘space’. In In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469, Mason J said:

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.

This common law statement is reinforced in legislation. The Wrongs Act 1958 (Vic) s 83 says:

In determining whether a public authority has a duty of care or has breached a duty of care, a court is to consider the following principles (among other relevant things)—

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions;

(b) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);

(c) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.

These statements have a number of implications.

First you cannot sue governments over the exercise of their legislative or quasi-legislative powers (see also Vairy v Wyong Shire (2005) 223 CLR 422 and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1). What that piece of jargon means is you cannot sue the government for making a bad law or failing to make a good one. The government of Victoria has implemented a policy through the enactment of the Non-Emergency Patient Transport Act 2003 (Vic) and that Act only allows people to provide non-emergency patient transport if they hold the appropriate licences and authorities. Equally the Drugs, Poisons and Controlled Substances Act 1981 (Vic) sets out who can use drugs, who can grant authorities, when they can be granted etc. You can’t sue the government if the application of those laws and policies leads to adverse outcomes for some. The idea of democracy (at least our democracy) is that we get to vote for our MPs and if we don’t like the laws they are making we can vote for someone else. You also can’t sue the various departments that have to administer the law and make the regulations (the quasi-legislative role) to give effect to those laws.

Finally in deciding whether or not there is a duty of care you have to consider ‘the broad range of [the government’s]… activities’. Governments when acting as a landlord, employer or in the market place owe a duty of care to an individual in the same way any other person does (Wrongs Act 1958 (Vic) s 14C; Crown Proceedings Act 1958 (Vic) s 11; Graham Barclay Oysters v Ryan (2002) 211 CLR 540, [11]-[12] (Gleeson CJ)). But when deciding on policy options the government does not owe a duty to individuals. Every policy has winners and losers, competition policy may improve consumer choice but it also allows one competitor to drive another out of business. One can’t sue just because one is on the losing side of the scales so the fact that it is foreseeable that a MICA paramedic may be employed by an non-emergency patient transport provider, and a patient may have an unexpected crisis, and the MICA paramedic could assist if he or she had authority to carry the necessary drugs whilst engaged in this secondary employment, that would not and could not give rise to a common law duty of care, enforceable in the courts, to require the government to issue an authority to allow the MICA paramedic to have access to those drugs. .

So the government can implement a policy regarding NEPT providers and the terms of their services and a patient cannot sue if the outcome is not in their best interests.

2 thoughts on “Restricting the practice of Non-Emergency Patient Transport providers in Victoria”

A further question from my original correspondent:
“From a different perspective in regards to the NEPT Protocols which were done in 2007.
If a patient believes they were treated in an inappropriate manner because the protocols we are required to follow are from 2007 and have not been updated in any form since then, although numerous requests have been made to update the protocols and given AV protocols are done at least annually would the patient be in a position to make a claim against the NEPT provider and the government? Some examples could be no epi – pen available, pain relief not working, no trauma protocols.”

I’m not sure who has set the protocols to which you refer. An NEPT provider has to have ‘arrangements for maintaining the quality of the service’ and ‘arrangements for evaluating, monitoring and improving the quality of the service’ (s 15). A licence is issued for 2 year but may be renewed (ss 19-23); the terms and conditions of a licence may also be varied (ss 24-28).
If the protocols in question are set by the relevant department as a condition of the licence then one cannot be sued for complying with them nor can the department be sued for exercising a policy choice when determining what is or should not be part of the NEPT service, so if the Department has determined that NEPT providers are not to carry epi-pens, then so be it. The avenue for patient’s who believe they have received sub standard care is to lobby the government to change the rules.

If, on the other hand, the relevant protocols were submitted as part of the application by the NEPT and they have simply not been updated, when reasonable practice has changed, then one could sue the NEPT for not reviewing it’s practices and if necessary applying for a variation. In Ambulance Service NSW v Worley, the plaintiff sued NSW Ambulance alleging among other things, that the service was negligent for still administering adrenaline IV when the scientific evidence was that it carried less risk to administer the drug IM. The reason the Service won, in part, was they were able to point to their own quality assurance system, that they were aware of the debate, but that the scientific evidence was not yet conclusive on the benefits of IM v IV administration. Had they not known, and not been aware of developments in the field, the outcome may have been different.

An NEPT provider who has taken no steps to inform themselves and to keep their practice up to date and, if necessary, apply for a change to any conditions on their licence to reflect that could certainly be negligent. .